Tag Archives: Natural Law

Food for Thought: Justice, Sentences, and Retroactivity

This question relates to our discussion of natural legal theory, and especially to the work of Lon Fuller and John Finnis. Both of these theorists explore the links between morality and law. Their theories can be used prescriptively, as frameworks that, if adhered to by lawmakers, will result in laws that meet minimum moral standards. They can also be used analytically, as frameworks that should allow us to differentiate between laws that are morally justifiable and laws that are not.

Pavlich (2011) uses both theories to analyze the Apartheid-era Prohibition of Mixed Marriages Act, and he asks us to consider “[w]hich of the two approaches … provides a better way to challenge unjust apartheid legislation” (p. 39).

This week’s food for thought question will also involve a case study.

The scenario:

The Government of Canada passed the Safe Streets & Communities Act, and it received royal assent in 2012. Among (many) other things, this act revised the Controlled Drugs and Substances Act by introducing a number of mandatory minimum penalties associated with the production of certain prohibited drugs. For example, in relation to marijuana, s. 41 of the Safe Streets & Communities Act provides that the minimum penalty for the production of marijuana is

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

This legislation stands in stark contrast to current public opinion regarding marijuana. Polls consistently show that the vast majority of British Columbians, for instance, are in favour of decriminalization.

Imagine that a person who is aware of the current law regarding marijuana production decides to start a small hydroponic operation consisting of ten plants. He already has a (legal) home hydroponic setup that he uses to grow tomatoes, and it takes only a little effort to adapt it to grow marijuana as well. A portion of the product grown is for his own personal use, but he sells most of it to friends, neighbors, and colleagues. He reasons that this does not hurt anyone, and that – used in moderation – marijuana is considerably safer than many legal substances, especially alcohol. He further reasons that ‘times are changing’, and it won’t be long before Canada abandons its prohibition-based approach to marijuana and follows the lead of Washington and Oregon.

One of the man’s customers is stopped by the local police department and found to be in possession of a small amount of marijuana for personal use. When asked where he purchased the marijuana, the customer identifies his source. Police obtain and execute a search warrant, and they find the hydroponic room and its ten plants. The man is subsequently charged with production for the purpose of trafficking. He pleads guilty. The sentencing judge, following the law as set down in the Safe Streets & Communities Act, imposes the mandatory minimum sentence of six months in provincial prison. The case is clear-cut.

One week after the man is sentenced, a federal election results in a change of government. The winning party is elected with a majority of the vote. A major component of their platform is the promise to fundamentally change Canada’s approach to marijuana because – in the words of the party – “the prohibition of marijuana is and has been an unjust, immoral, failure of public policy, and its continuation is contrary to the values of the people of Canada”. The new Government’s first order of business is to pass legislation to legalize and regulate the production, sale, and possession of marijuana. The legislation passes quickly, and marijuana is effectively decriminalized in Canada.

Through a quirk of fate, the man in our scenario turns out to be the last person in the country convicted of production for the purpose of trafficking (and indictable offence) under the previous legal regime. It is now perfectly legal for an adult to cultivate marijuana in his or her own home, and to sell marijuana to other adults.

A public advocacy campaign is quickly organized to lobby the courts and the federal government to release the man from prison and commute his sentence. Proponents of this action argue that it would be unjust to continue to punish the man for actions that are no longer subject to criminal sanction. They suggest that a person should not be jailed for an act that is no longer unlawful. Opponents of this campaign argue that even though public opinion and the law of the land have changed, the fact of the matter is that the man clearly broke the law as it existed at the time that he committed the acts in question, and that his sentence was – and remains – the product of a fair and lawful trial.

Food for thought:

Write a blog post (see your syllabus for guidelines) that addresses the following questions:

  • Would releasing the man from prison and rendering his conviction null and void reflect the underlying morality of law, according to Fuller? Explain your response.
  • Would insisting that the original sentence still stands be in the interests of the common good, as understood by Finnis? Explain your response.
  • According to your own perspective, what would be the just course of action in this case? Explain your response.

Your post should dedicate roughly the same amount of space to each of the three questions. Be sure to refer to Pavlich (2011) and follow proper citation procedures. Feel free to draw on additional sources and make use of hyperlinks, images, and videos.

If you choose to prepare a post in response to this question, it must be submitted before our next class.

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Food for Thought: The Hart-Fuller Debate Revisited

This week’s class included a discussion based on the famous debate between HLA Hart and Lon Fuller about the validity of Nazi-era laws. Hart defended the positivist approach, while Fuller’s position was informed by natural legal theory.

Food for thought:

This is a two-part question.

1. Write a post that takes a stand on the Hart-Fuller debate. You will need to explain which position (Hart’s or Fuller’s) is more persuasive and why. Remember: This is a public-facing blog, so your post should also provide enough descriptive and explanatory content for it to be understandable to a public audience.

2. Explain what is at stake in the Hart-Fuller debate. Why does this debate matter? What are the implications of accepting one stance vs. the other? You can approach this question in relation to the specific case that Hart and Fuller were discussing, but remember that this case was an opportunity for them to have a broader discussion about positivist and natural legal perspectives.

Feel free to refer to excerpts from the Hart-Fuller poster distributed in class.

Posts prepared in response to this question should be submitted before 19:00 on October 2.

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Food for Thought: Morality, Law, and the Charter of Québec Values.

In this week’s class, we discussed classical and contemporary theories of natural law. We spent the second portion of our meeting looking at the work of Lon Fuller and John Finnis, two modern legal theorists who work within the natural law tradition.

Fuller is concerned with the rules that constitute the ‘internal morality of law’. He describes eight rules that must be followed in order for a legal system or given law to be considered valid. These rules do not focus on the content of legal statutes, but on the ways that law is crafted and administered – the ‘procedural morality’ of law.

Finnis takes a different approach. His starting point is a careful, intuitive survey of the basic aspects of well-being – in other words, what ‘basic goods’ about social life appear to be self-evident? He identifies seven ‘basic forms of human flourishing’, ranging from the valuing and transmission of life to religion and the value of spiritual experience. He argues that the purpose of law is to serve the common good (which reflects these basic forms of human flourishing). Law provides the orderly framework that allows people to pursue self-evident goods.

Pavlich organizes his review of contemporary natural legal theory around a case study of the Apartheid-era Prohibition of Mixed Marriages Act (1949). This is a piece of legislation that, from our present social and moral standpoints, appears to be categorically unjust. It is based on notions of racial supremacy, structural discrimination, and inequality. Pavlich invites us to use both Fuller and Finnis’ theories of natural law as sources for a vocabulary of critique that would allow us to explain why the Prohibition of Mixed Marriages Act is unjust and immoral.

Food for thought:

I would like to reproduce Pavlich’s exercise using a different case study – one that is the focus of considerable debate across Canada right now.

Québec Premiere Pauline Marois (of the Parti Québécois) recently introduced a Charter of Québec Values. This Charter, if it is passed into law, would (among other things) support the idea of a secular public sphere by prohibiting public servants from displaying overtly religious headwear, clothing, and ‘conspicuous’ religious symbols. It would also require those who seek to use state services to uncover their faces.

The proposed charter has been highly divisive, and some have argued that it is unjust, immoral, and a violation of Canadian values. Others have expressed strong support for the idea of a secular state (which is not a new idea in Québec).

This is the official website of the Charter of Québec Values.

And this is a CBC News story that explains some of the different perspectives on the Charter.

Instructions:

Write a post that examines the Charter of Québec Values using both Fuller’s procedural morality perspective and Finnis’ theory of Law and flourishing human life. Your post should address the following questions:

  • Assuming the Charter passed and was implemented, would Fuller argue that it has the force of law? Would Finnis?
  • Of the two theorists, whose ideas provide the stronger vocabulary of critique in this case?
  • Finally, what is your perspective on the Charter? Is it just?

Your post should engage with material from Pavlich (2011) and sources that discuss the Charter of Québec Values.

Posts responding to this food for thought question must be submitted before 19:00 on September 25.

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Abortion: Natural vs. Postivist Law

For this week’s Food for Thought, I have decided to address the alternative option/topic that asks of us to discuss our forthcoming term paper. Although I originally had intended to proceed with this week’s original discussion of Derrida’s Deconstruction is Justice, I felt the opportunity to pre-emptively present my paper in a condensed form was too great of an opportunity for feedback than I could pass up. For the remainder of the blog, I will be focusing on three areas of interest, rights surrounding abortion (or the abortion debate as many know it), the concepts surrounding Natural Law (Natural Law Theory), and the Positivist approach to legal thinking (Positivism). Moreover, it should be noted that when looking at such a volatile subject such as the abortion debate, I felt it was only appropriate to ground the theoretical landscape in an equally strong debate that is known as the Hart Fuller Debate. Before I begin dissecting the two analytical approaches previously mentioned, I will begin by framing topic at hand with a break-down of the abortion debate as we know it.

Abortion

For the last half century there has arguably been no other subject, no other debate as polarizing as the abortion debate. Undeniably connected to the modern Women’s rights movement, a flurry of opinion has swirled around the conceptions of individual rights, whether they are for women or an individual woman, an unborn child, or even the potential father of unborn children. Because of this, debates surrounding abortion, abortion rights, and rights of unborn children continue to be heard, with many different perspectives being put forward in an effort to strengthen one side’s perspective over the other. Although the temptation to advance my personal feelings and perspective on this topic is strong, I will, for the sake of this blog post, refrain from advancing such ideas; rather I will focus an effort to flesh out how the two previously mentioned legal theories would approach the subject. Many have tried to advance theories relating to different aspects of abortion, including how general attitudes will sway dependent on several variables. However, even though there appears to be some predictability of attitude related to sex, religion and education, the results are not indicative enough to proclaim undeniable certainty (Bryan 1992). Regardless of attitudes, one could sum up the abortion debate by forwarding the ultimate question of whether or not an unborn fetus is or should be considered a person. This point is forwarded by Earnhart et al. (1999) when they state” Sooner or later in the debate about abortion, the question of “the person” must arise” (p.128) Continuing, Earnhart et al. (1999) explain in regards to the question of the person “this is the question on which all other questions of abortion depend” (p. 128). Because of the previously statement, we must frame our discussion of Natural Law and Positivist legal theories around this topic while, at the same time examining, comparing, and contrasting the rights of other parties involved (Women and Men).

Natural Law

When examining Natural Law, or more pointedly, the work of Lon Fuller, we are told a fictitious story of King named Rex (as I have discussed this story at length in a previous blog I will forgo an in-depth discussion at this point). However, what should be noted, is one criteria (of eight) that distinguishes a “internal morality” needed to claim a law valid, this criteria makes the distinction that law itself must not be contradictory in nature (Pavlich, 2011). Within this specific criteria we can begin to see the abortion debate frame around the theoretical perspectives of Natural Law; this must be looked at with the Canadian Charter of Rights and Freedoms in mind, specifically section 7 where it states “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Arguably, this section of the charter can be taken to support both pro-choice and/or pro-life provisions. Potential forthcoming discussions of this argument are quite plain to see if one was to place the The Charter, Natural Law, and Abortion Rights next to one another. However, the debate begs the question of how can the laws of Canada protect both the life of a woman (the mother) and the life of an unborn fetus; the contradiction is both obvious and disconcerting. One could not be faulted to suggest the Canadian Government needs to make a firm decision and proclamation on this subject rather than double speak and allow the debate to swirl around the legislature, sporadically entering for debate time and time again.

Positivism

When considering laws just or rather valid, we have seen for Naturalist, the law and morality must compliment one other, meshing as one in order to proclaim validity. However, for the positivist, morality within a code is not of a concern, rather it is the basis of fact, whether it is law or not, that is what drives Hart`s focus. This point is reinforced by Pavlich (2011) when he states “legal positivism seeks objective and morally neutral ways to study law as an observable fact in the world” (p. 43). This description of Positivism can be seen as the basis for its position regarding abortion, a position that eliminates the boundaries of morality (intangibility) while only considering tangible assertions. This in itself should be seen as problematic by those in the pro-life camp as one could suggest a legal theory not grounded in a quest guided by morality cannot appreciate or defend an action (abortion) that is so vigorously opposed due its immoral nature. Although legal positivism may not be grounded in morality as a basis for claiming justifiable, valid law, it attempts to ground its framework in empirical evidence (tangible concepts) that suggest, reinforce, and validate positivist claims regarding law. Although much more can be said regarding positivism at this time, one can see how positivistic approaches to law would broach the subject of abortion and abortion rights.

*For a brief clarification and summary of the two before mentioned legal theories, please refer to the videos linked below*

Ultimately, when examining both Natural Law and Positivism in relation to Abortion Rights, one can see the landscape laid out for an enthralling and lively discussion of legal thinking. Speaking directly about the abortion debate, it must be restated that although we all may have our own personal feelings regarding this subject matter, this blog post was intended to simply lay out the forthcoming debate/discussion rather than proclaim a preferred view, or even winner. As we live in increasingly complicated times, it is only through responsible, respectful discussion and debate, that we will be able to iron out our differences and beliefs in order to reach the ultimate goal of a better future for all.

I wish to thank the moderator of this blog for the effort and time invested in the maintenance, advice and critique of all involved. Additionally, I wish to thank and congratulate all other contributors of this blog, the work has been tremendous and the discussions enthusiastic, it has truly been a pleasure, thank you.

The Abortion Debate Rages on:

Positivist Law:

Natural Law:

References

Bryan, J. W., Freed, F. W. (1992). Abortion Research: Attitudes, Sexual Behaviour, and Problems, in a Community College Population. Journal of Youth and Adolescence, Vol. 22(1). 1-22.

Earnhart, B., Gordon, D., Irving, D. I., Paul, R. Vieria, E., & Walker, J. (1999). Abortion And The Question Of The Person. International Journal of Sociology and Social Policy, Vol. 19(3/4), 48-52.

Pavlich, G. (2010). Law and Society Redefined. Ontario: Oxford University Press.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

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Morality Within Law: Its Positively Natural!

For my second blog, or “musing,” I have decided to address the Hart-Fuller debate regarding positivism and natural law. Although I had originally intended on directly pursuing the “food for thought” topic for this week, our class discussion regarding the Hart-Fuller debate has proven far to enticing to not address. Moreover, I feel that a discussion regarding the Hart-Fuller debate, maintains the spirit of discussion as laid out in this week’s “Food For Thought.”

Before we begin the crux of this musing, we should first identify both Hart and Fuller, while defining their positions on law and legality. For the purposes of this blog, I will attempt a short and concise summary of each scholar’s contributions regarding the debate of morality within law(s).

Herbert Hart can be identified as a legal scholar/theologian who’s basic principles essentially suggest that even though certain laws may be seen as immoral, as we will see with the forthcoming Nazi example, they are still valid, binding laws as they have been both legitimately enacted and legitimately followed/enforced/maintained; as the issue of legitimacy is not in question, one cannot disrupt the validity of said laws by claiming they were never legitimate to begin with as the possessed zero moral grounds (Pavlich, 2011).

Lon Fuller, also a legal scholar/theologian, suggested law in itself contains morality to some degree, that this morality is what can be seen to justify and validate a laws legal authority (Pavlich, 2011). Furthermore, Fuller incorporated this concept of legal morality in his understanding of law making, by describing law making as the “craft of law making” (Pavlich, 2011). Fuller’s description of law making as a “craft” can be seen his prime indication that there is something more occurring within law than just simply legality. Much like any tradesman/tradeswoman, there are elements of intangible talent that one possesses in order to be considered “good” (Pavlich, 2011). This point is reflected by Pavlich (2011) when he continues to describe Fuller’s position by stating “the craft of lawmaking has what he calls a unique ‘internal morality’ that allows us to identify it, legitimately, as law” (p. 30).

The swell of the Naturalist/Positivist standoff came to a head during a post World War Two German court case where the legitimacy/validity of previous laws (laws enacted by the Nazi regime) were tested to determined whether or not those that had acted in accordance with specific Nazi laws had acted rightfully (legally) or not (Pavlich, 2011). For the purposes of this blog I will not go into great detail regarding the specific case at hand. However, so that everyone reading this is on par, I will continue with a summarized version of the proceedings:

A woman (living in Germany, under the Nazi regime), reported her soldier husband to authorities as he had mentioned to her that he was disappointed that a recent assignation attempt on Adolf Hitler had been unsuccessful; this was a crime at the time as the Nazi party had enacted laws to prevent and punish such communications. After the wife of the German soldier reported this to Nazi officials, the German soldier was arrested and sentenced to death. Although the death sentence was not carried out, he was sent to the front lines of the war; a technical death sentence at the time. After the war ended, and her husband surviving, she was charged and convicted under new regulations which declared the previous regulation(s) imposed by the Nazi regime to be invalid and as such, of no legal authority. (Pavlich, 2011).

With this case at hand, Hart and Fuller found themselves disagreeing upon the legitimacy/validity of the Nazi law the woman had “followed.” Although this debate can be seen as a battle between two men, in reality it is the collision of the two very differently minded legal positions, positivism and natural law.

Positivism would suggest that the woman, regardless of motivation, acted appropriately and in accordance with a justifiable law. Furthermore, positivism would suggest that if immoral, ulterior motives knowingly did exist within her decisions to report her husband, it would not matter as that is not the issue of debate. Positivism, through its perspective, sees no room for morality within in law. Moreover, one could suggest that positivism outright pushes away the sense of law entangled with morality. However, Fuller and natural law theorists would have us believe otherwise.

Natural law theorists would suggest that any law based on injustice or immorality loses its credibility and validity, ultimately striking away its power, disregarding the law altogether. Essentially, this removes any perceived legal responsibility on the part of those the law would normally regulate. Furthermore, natural law theory can be seen to suggest that an outside source of justice must exist for anyone to make this claim. For if we are able to suggest that a law, even one legitimately enacted, retains no power due to its immorality, a separate barometer of right and wrong must exist outside the spectrum of law.

When all is said and done, I find myself leaning toward, and ultimately siding with, Fuller’s position. Although Hart’s position is quite logical and understandable, especially when looking at his scathing critique of the naturalist position, I cannot but help remember the quote by great legal scholar/theologian St. Augustine, “an unjust law is no law at” (Pavlich, 2011, p. 22). Furthermore, one could suggest the post World War Two courts agreed and sided with the Naturalist position, as the woman charged in the case study, was eventually convicted on the ground that the Nazi enacted law retained no legal authority, regardless of its legitimate creation.

Ultimately the validity of law remains within its inherent morality, as no single individual would agree to be ruled by laws and regulations that were not at least based on some moral underpinning; at the very least ones own personal moral underpinning. Suggesting legal rules and regulations are exempt from moral reasoning and rationale is absurd and should be extinguished. Law is not intended to be arbitrarily created, enacted or altered, as though it is a child’s playground where rules are made at whim in order to satisfy those in charge. Laws are intended to be basic, fundamental rules and regulations that we as a society agree upon, social, guiding principles that remain true yesterday, today and tomorrow. As far I’m personally concerned, positivism, although well-intentioned in its focus, neglected to give weight to the intangible elements of law and society, giving way to cold, calculated machine-like perspective on legality; not surprisingly embraced by the cold, calculated Nazi regime. Ultimately, it is my view that positivism failed in its attempt to dehumanize regulations intended to govern humans, and that appears ironically irrational.

Note*

Below is a link to an interesting article discussing the compatibility of law and morality. Additionally, I have included a video that attempts to break down and explain the debate between Natural Law and Positivism, enjoy.

Article:http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1185&context=wmlr&sei-redir=1&referer=http%3A%2%2Fwww.google.ca%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dhart%2520fuller%2520debate%2520articles%26source%3Dweb%26cd%3D14%26ved%3D0CDEQFjADOAo%26url%3Dhttp%253A%252F%252Fscholarship.law.wm.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1185%2526context%253Dwmlr%26ei%3DC2lmUJLUFqXgiwLaoIDIBg%26usg%3DAFQjCNExIPwJ1TiRNmgmnR5qWZnyFKhY1Q#search=%22hart%20fuller%20debate%20articles%22

Video: http://www.youtube.com/watch?v=ge7UowL0d3U

References

Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford.

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Legitimacy of Laws: Democrats vs Tyrants

The question for us this week was to discuss whether the laws of a tyrant were less legitimate than those of a democratic ruler, and what the differences between the two were. I think it is appropriate to begin with the basics.

Tyrant: A sovereign or other ruler who uses power oppressively or unjustly.
Democracy: Government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

At first glance it seems an easy decision. Laws enacted by a government that was elected by the people that those laws govern would be more legitimate than those of a tyrant, who wields power in their own interests, often at the expense of their citizens. However, the positions taken by some of the theorists we are studying in this course complicate the picture a little bit.

From a positivist perspective, law is separate from morals. The “proper description of law is a worthy objective and a task that needs to be kept separate from moral judgments… a descriptive, or at least morally neutral, theory of law is both possible and valuable (Bix, as cited in Pavlich, 2011, p. 40). Natural law, on the other hand, is concerned with a “higher, moral authority” that is said to be the foundation of law (Pavlich, 2011, p. 27).

So are the laws of a tyrant legitimate? Are they less legitimate than those of a democratic ruler? It depends on the situation. From a natural perspective of law, it is more unlikely that the laws would be as legitimate as those from a democratic ruler. For example, the perspective of John Finnis would not provide legitimacy to the laws of Nazi Germany (specifically, the example used in the chapter, and Nazi Germany is also commonly referred to when speaking of a dictatorship). Finnis’ perspective revolves around the “seven basic forms of human flourishing” (Pavlich, 2011, p. 35). They include:

1. The valuing and transmission of life
2. Knowledge for its own self
3. Play
4. Aesthetic experience
5. Sociability and especially friendship
6. Practical reasonableness
7. Religion or the value of spiritual experience

Finnis also declares that a ruler must pursue the interests of a common good (p.35). If we take the example from Nazi Germany (The woman reporting her husband for speaking ill of Hitler and his government), it is quite clear that this law would be invalid under Finnis’ definition. Punishment for speaking out against Hitler is death. At the very least this is a severe violation of Finnis’ first basic form of human flourishing, and only advances the interest of Hitler and his government, not the “common good” required by  Finnis.

Fuller would come to a similar conclusion as he states in his famous debate with Hart: “To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system” (Fuller, as cited in Pavlich 2011, p. 41). Pavlich describes Fuller’s view as being that “the authority and legitimacy of law is, For Fuller, founded on morally guided practices of lawmaking that involve the consent of those whom it governs” (p. 32). One could say that the people of Nazi Germany did “consent” to Nazi laws, as they did after all elect Hitler into power. However, the counter-argument is that consent is not true consent if it is achieved by fear, terror, and threat of death.

Positivist theory, on the other hand, is a bit more difficult to use in tackling this issue. Since the main idea of positivist theory is to separate the “is” from the “ought to be” of law, morality is detached from the argument, and opens up potentially unjust land immoral aws to being legitimate. By this perspective, whether the laws of Hitler were moral or immoral, just or unjust, is an argument for someone else. In regards to the case discussed in the debate, Hart argues that “whatever the morality of the laws at hand, they were in force at the time and should be considered valid” (Pavlich, 2011, p. 43). Hart is not arguing that the laws are right are wrong, he is merely stating that the woman was obeying (albeit for selfish reasons) the law that was in force at the time, and the court was incorrect to apply a previous law based on the unjust nature of the current law.

Another point that Hart makes has to do with the legitimacy of social rules. Hart explains his “internal aspect of rules” by saying that “legitimate social rules are accompanied by a basic, if implicit, sense that they set a general standard to be followed by the group as a whole” (p. 46). This logic also gives credibility to the “immoral” Nazi law that nobody was to speak out against Hitler or the Reich. It is well known that the Nazis ruled by fear, and this type of law, enforced by fear, would have been a general standard to be followed by the German people, who would have feared retribution by Hitler’s soldiers. It does, however, show that not all Nazi laws may have been legitimate under positivist legal theory. If a general standard to be followed by the group (German citizens) then there are many laws that discriminated against Jews and other minorities that would possibly be declared invalid by Hart. This threat to legitimacy would be why (as we learned in class) every Jew going into a concentration camp was coerced into signing away their citizenship.

So to answer the question of whether the laws of a dictator are legitimate, I say yes, they can potentially be legitimate.  Law is law, and the morality of those laws is a different discussion from the legitimacy and justice attached to those laws. These laws were created by a dictator who was elected by his own people, and despite the atrocities committed with them, they were “legitimate” laws. They are clearly immoral and do nothing for Finnis’ “common good”, and so certainly cannot be labelled as “good” or “effective” laws, but they are legitimate.

Finally, the primary difference between a dictator’s laws and a democracy’s laws, in my opinion, is the level of fear and oppression involved. In a democracy, yes, we have punishments for violating laws, however violating a dictator’s laws would be punished much more severely. As an example, what would be the punishment for speaking negatively about Stephen Harper? Probably nothing, yet speaking negatively against Adolph Hitler was punishable by death.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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